Volume 32, Number 4

INTRODUCTION

EMPIRICAL MEASURES OF JUDICIAL PERFORMANCE: AN INTRODUCTION TO THE SYMPOSIUM

Steven G. Gey; Jim Rossi

In the highly charged political process of vetting, presenting, and approving federal judicial nominees, it is commonplace for Presidents, Senators, and interest groups to make claims about a nominee’s merit or lack thereof. Both supporters and opponents of nominees often phrase their positions in objective terms of merit.Read Article

In two recent, provocative articles, Professors Stephen Choi and Mitu Gulati contend that a tournament based on objective considerations of judicial merit should govern our approach to the nomination and confirmation of Supreme Court Justices. Professors Choi and Gulati developed their three quantitative tournament criteria—seeking to measure productivity, independence, and quality among sitting appellate judges—for prospective application. It seems reasonable that these same criteria could be used to compare two contemporaneous Supreme Court nominees from a somewhat earlier era, in order to consider whether one emerges as more “worthy.” Such a comparison is likely to be especially instructive if both nominees then ended up serving on the Supreme Court, thus allowing for observations regarding their actual performance, not simply their tournament-related potential.Read Article

JUDGING THE TOURNAMENT

Hon. Jay S. Bybee; Thomas J. Miles

The United States Constitution provides that the President has the power to appoint federal judges with the advice and consent of the Senate. The Constitution does not specify the criteria that the President should use in selecting judicial nominees or that the Senate should employ in reviewing them. In recent years, the process of nominating and confirming candidates for the federal bench, and especially the Supreme Court, has become increasingly political and contentious. Professors Choi and Gulati criticize the apparently growing role ideology plays in choosing and evaluating judicial nominees and propose a bold alternative. Their “Tournament of Judges” purportedly consists of a series of ideologically neutral measures that identify which appellate judges “merit” elevation to the Supreme Court. By restricting the choice of a nominee to the winner of the tournament, Professors Choi and Gulati hope to eliminate the role of ideology and the attendant partisan battling from the selection of Supreme Court Justices. Moreover, they claim that their marketbased system for judicial selection would improve the quality of nominees. The current federal appellate bench, which is itself a product of the very system that Professors Choi and Gulati lament, should perhaps be grateful for their providing the equivalent of an HR manual for boosting each judge’s odds of promotion. But we are convinced that evaluating judicial performance is not as easy as they suppose and that relying exclusively on the Tournament to select a Supreme Court nominee would not advance the rule of law.Read Article

WHICH JUDGES WRITE THEIR OPINIONS (AND SHOULD WE CARE)?

Stephen J. Choi; G. Mitu Gulati

If one of our students were to pass off someone else’s work as his or her own and we were to discover that misrepresentation, the penalties would be harsh. But as lawyers, we hold ourselves to less rigorous standards for plagiarism than those to which we hold our students. Where research assistants make significant contributions to their professors’ papers and sometimes even draft large sections of those papers, they are rarely given anything more than an acknowledgement in a footnote. Law firm partners, we suspect, think nothing of asking junior associates to draft entire articles or book chapters and then send them out under their name (again, often without acknowledgement of the flunky’s authorship). And then there is the matter of judges. Law clerks are said to draft the vast majority of opinions for judges. Yet, if one were to ask most lawyers and judges whether authorship credit should be given to the individual clerks, they would in all likelihood think the question ridiculous. Why do we, as lawyers, consider proper attribution of authorship so important for our students and so unimportant for ourselves?Read Article

THE ROLE OF QUALIFICATIONS IN THE CONFIRMATION OF NOMINEES TO THE U.S. SUPREME COURT

Lee Epstein; Jeffrey A. Segal; Nancy Staudt; Rene Lindstadt

In light of concerns that politics, philosophy, and ideology now dominate the federal judicial appointment process—a process that many claim should emphasize ethics, competence, and integrity—scholars have offered a range of proposals. A considerable number, though, aim to compel elected actors to focus on the candidates’ qualifications rather than on their political preferences.

Without taking a normative position on these sorts of proposals, we demonstrate empirically that the process leading to the appointment of (at least) Supreme Court Justices may not be the “mess” that the proposals suggest. While it is true that U.S. Senators are more likely to cast votes for nominees who are ideologically proximate to them, qualifications also play a significant role in accounting for the choices Senators make.Read Article

SUPREME COURT SELECTION AND MEASURES OF PAST JUDICIAL PERFORMANCE

Daniel A. Farber

Can we measure the quality of a judge’s past performance? Should the President weigh this factor in making Supreme Court appointments? I will argue that the answer to both questions is the same: “Yes, but with significant qualifications.” Yes, we do have some indices for assessing judicial performance—but those measures are rough and incomplete. Yes, the President should consider past judicial performance and its objective indicators—but only to a limited degree.Read Article

JUDICIAL SELECTION BY THE NUMBERS

Michael J. Gerhardt

The lure of doing empirical research in legal scholarship is strong, but the appeal of critiquing judicial selection is stronger. So it is rather surprising that empirical analysis figures very little in the voluminous legal commentary on judicial selection. Instead, legal scholars devote little attention to the actual numbers in judicial selection; they generally defer to, or merely accept, the empirical work done by others, particularly social scientists, on judicial selection. While some of these studies are excellent, many have problems. In this Essay, I explore three basic challenges to doing empirical studies of judicial selection and suggest ways to meet these challenges. My hope is to give some useful guidance to legal scholars and others interested in developing a more sophisticated understanding of the judicial selection process through empirical analysis.Read Article

FEDERAL JUDGES AND THE HEISMAN TROPHY

Steven Goldberg

Choi and Gulati propose selecting as Supreme Court Justices those federal circuit court judges who are outstanding at their job. They note that “differences exist” between “the job of a circuit judge and that of a Supreme Court Justice,” but they ask whether “the current system” of selecting Justices does a better job than their proposal, and they conclude, “We do not see how it could.”Read Article

WHO JUDGES THE JUDGES?

John V. Orth

In the routine performance of their judicial functions, judges are judged, in the loose sense of the word, by the litigants and by the general public, the latter usually informed through the reports of journalists. These two groups represent the ultimate consumers of the judicial product: the litigants directly as parties to the decision, the public indirectly as parties affected by the precedent established. On the judgment of these two groups over time rests the public reputation of the individual judge; on the cumulative judgment of all the judges rests the public reputation of the judicial branch of government.Read Article

JUDICIAL BEHAVIOR AND PERFORMANCE: AN ECONOMIC APPROACH

Hon. Richard A. Posner

In this Essay, I propose that judicial behavior is best understood as a function of the incentives and constraints that particular legal systems place on their judges. The approach is thus an economic one, but it is also commonsensical, has broad empirical support, and, of particular relevance to this Symposium, has strong implications for assessing judicial performance and performance-based criteria for judicial promotion. This Essay contains no original empirical research, but seeks to provide a framework for interpreting and guiding empirical studies of judicial behavior.Read Article

PULLING FROM THE RANKS?: REMARKS ON THE PROPOSED USE OF AN OBJECTIVE JUDICIAL RANKING SYSTEM TO GUIDE THE SUPREME COURT APPOINTMENT PROCESS

Hon. Bruce M. Selya

Although politics and ideology long have played a role in federal judicial appointment and elevation, that role has swelled in recent years. Ongoing Senate confirmation battles over federal court nominees and rampant speculation about potential retirements from the Rehnquist Court have morphed into mainstream news. One critique of this ongoing fascination with the appointment process is that it is fundamentally out of focus. The contemporary debate centers on predicting how a putative Justice might (or might not) tip the balance on hotbed political issues rather than on merit or qualification for judicial service. Consequently, the debate says very little about how those dimensions might be measured. Traditionally, the American Bar Association has produced a qualitative measure of merit (which it provides to the President, the Attorney General, and the Senate Judiciary Committee) that evaluates the integrity, professional competence, and judicial temperament of each federal judicial nominee and designates each nominee as well qualified, qualified, or not qualified. This system, though valuable in some aspects, has limited utility because its “thumbs-up/thumbs-down” approach provides meager information about the relative merits of the nominees. Moreover, its legitimacy as a nonpartisan measure has come under attack by researchers who suggest that it could be a disguised political device.Read Article

DO JUDGES BEHAVE AS HOMO ECONOMICUS, AND IF SO, CAN WE MEASURE THEIR PERFORMANCE? AN ANTIPODEAN PERSPECTIVE ON A TOURNAMENT OF JUDGES

Russell Smyth

The purpose of this Essay is to examine Choi and Gulati’s concept of designing a “tournament of judges,” with particular focus on whether it would be useful in the Antipodes (Australia and New Zealand). Focusing on Australia and New Zealand offers an interesting comparison with the United States and allows one to flesh out some of the issues associated with designing a tournament in countries with seriatim opinion writing and no judicial conference. There are some similarities in terms of promotion arrangements (for example, in New Zealand most members of the Court of Appeal are promoted from the High Court) and some differences (for example, in Australia promotion to the High Court comes from one of several courts or from private practice). There are also differences in the appointment process. One of Choi and Gulati’s main rationales for formulating a tournament of judges is that the process of appointment to the United States Supreme Court is so politicized. This is less so in Australia and New Zealand. The judges of the High Court of Australia and the New Zealand Court of Appeal are appointed by the Governor General, who is the representative of the Queen of the United Kingdom, on the advice of the relevant national government. Thus it is effectively the government that makes the decision on who to appoint, but without the series of Senate hearings into the background of the candidate, which characterizes the appointment process in the United States.Read Article

JUDICIAL STRATIFICATION AND THE REPUTATIONS OF THE UNITED STATES COURTS OF APPEALS

Michael E. Solimine

Many people, it seems, are concerned throughout their lives in varying ways with how others think about or are affected by them—that is, their status, prestige, influence, or reputation. Similar judgments are ubiquitous in our legal culture. They often guide a student’s choice of law school, a lawyer’s choice of firm, area of practice, or which judge to clerk for, or a client’s choice of attorney, to name just a few. They also often guide our views about individual judges, whether on the U.S. Supreme Court or lower courts, both within a particular period and across time.Read Article

A TOURNAMENT OF VIRTUE

Lawrence B. Solum

How ought we to select judges? One possibility is that each of us should campaign for the selection of judges who will transform our own values and interests into law. An alternative is to select judges for their excellence—that is, for the possession of the judicial virtues: intelligence, wisdom, incorruptibility, sobriety, and justice. In an influential and provocative series of articles, Stephen Choi and MituGulati reject both these options and argue instead for a tournament of judges—the selection of judges on the basis of measurable, objective criteria, which they claim point toward merit and away from patronage and politics. Choi and Gulati have gotten something exactly right: judges should be selected on the basis of merit—we want judges who are excellent. But Choi and Gulati have gotten something crucial terribly wrong: they have mistaken measurability for merit. A tournament of judges would be won by judges who possess arbitrary luck and the vices of originality and mindless productivity; the contest would be lost by those who possess the virtues of justice and wisdom. The judicial selection process should not be transformed into a game.Read Article

INFORMATION AND THE SELECTION OF JUDGES: A COMMENT ON “A TOURNAMENT OF JUDGES”

Ahmed E. Taha

Choi and Gulati’s proposal for a tournament of judges, with appointment to the U.S. Supreme Court as the prize, has generated a furor and, more importantly, this law review Symposium. In response to an earlier version of their article, I raised a number of concerns with their proposal. In this Essay, I will expand upon some of these concerns and discuss how Choi and Gulati address them in the final version of their article.Read Article

KEEPING SCORE: THE UTILITY OF EMPIRICAL MEASUREMENTS IN JUDICIAL SELECTION

David C. Vladeck

The debate played out in the pages of this Symposium is a critical and timely one. The fight over judicial selection, especially over nominees to the federal courts of appeals and the U.S. Supreme Court, has become so politically polarized that, even during a time of one-party rule, it is a quagmire that many nominees fail to navigate successfully. My limited contribution to this Symposium is to offer the perspective of a full-time litigator who, for quite parochial reasons, is deeply invested in the quality of the federal appellate bench. In my view and in the view of most of the litigators with whom I have discussed this matter, the current approach to judicial selection—which places preeminent importance on a candidate’s ability to pass certain political litmus tests—has and will continue to erode the quality of the federal bench and the public’s confidence in the courts.Read Article